Smith v CSR Limited - [2024] NSWDDT 14

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Smith v CSR Limited & Ors [2024] NSWDDT 14
Hearing dates: 19 November 2024
Date of orders: 21 November 2024
Decision date: 21 November 2024
Before: Russell SC DCJ
Decision:
(1) Dismiss the Notice of Motion filed by the plaintiff on 29 October 2024.
(2) Order each party to pay his or its own costs of the Notice of Motion.

Catchwords:
DUST DISEASES – subpoena – application to set aside – legitimate forensic purpose – documents produced may throw light on the issues in the substantive proceedings – defendants are entitled to put plaintiff to proof – documents could bear upon reliability of plaintiff’s evidence concerning exposure event
COSTS – parties to pay their own costs – dispute could have been avoided if a plain English explanation was given when a plain English question was asked

Cases Cited:
Ahmed v Ahmed [2013] NSWSC 1814
National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
SingTel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

Category: Procedural rulings
Parties: Peter Ronald Smith (Plaintiff)
CSR Limited (First Defendant)
Midalco Pty Limited (Second Defendant)
Shire of Ashburton (Fourth Defendant)
Representation:
Counsel:
S Tzouganatos (Plaintiff)
D Miller (solicitor) (First and Second Defendants)
D Andersen (solicitor) (Fourth Defendant)
Solicitors:
Segelov Taylor Lawyers (Plaintiff)
Colin Biggers & Paisley (First and Second Defendants)
HWL Ebsworth Lawyers (Fourth Defendant)

File Number(s): DDT 2024/236979
Publication restriction: Nil

JUDGMENT

Introduction

By a Statement of Claim filed on 27 June 2024 the plaintiff Mr Peter Ronald Smith seeks damages against six defendants. Mr Smith suffers from malignant mesothelioma. He is 74 years old.
The first defendant CSR Limited (CSR) and the second defendant Midalco Pty Ltd (Midalco) are alleged in the Statement of Claim to have conducted the mining and milling of blue asbestos in the Wittenoom Gorge in Western Australia between 1943 and 1966.
The fourth defendant Shire of Ashburton (Ashburton) is alleged in the Statement of Claim to be the local government authority responsible for the town of Wittenoom and the nearby mining leases.
In his Statement of Particulars filed on 15 August 2024 Mr Smith alleges that in 1975 he travelled to Wittenoom with Mr Michael Doepel, who was a geology student. A third geology student travelled with them, but Mr Smith cannot recall his name. Mr Smith was asked to go to Wittenoom by Mr Doepel to assist in taking samples from the Wittenoom mine.
In par 4.1 of the Statement of Particulars Mr Smith says:

“During the trip we went to the township of Wittenoom. When we drove into Wittenoom there was nobody around. It was a ghost town. There were houses but these were deserted. There were no businesses and we did not see any other people, tourists or residents. We drove around the township for a while. We then got out and walked to the mine, about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v CSR Limited

Details

AGLC: Smith v CSR Limited [2024] NSWDDT 14
Case: [2024] NSWDDT 14
Decision Date: 21 November 2024

CaseChat Overview and Summary

Smith, the plaintiff, brought a claim against CSR Limited, the defendant, in relation to a dust disease arising from exposure to harmful substances in the workplace. The case was before the court as the plaintiff sought to set aside a subpoena issued to compel the defendant to produce certain documents. The defendant argued that these documents were necessary to challenge the plaintiff's claims and to establish the reliability of the plaintiff's evidence regarding the exposure event. The court was tasked with determining whether the subpoena should be set aside and whether the documents requested were relevant and necessary for the defendant's defence.

The court identified that the primary issue was whether the subpoena was issued for a legitimate forensic purpose and whether the documents sought could reasonably be considered necessary for the defendant's defence. The court noted that the defendants were entitled to put the plaintiff to proof and that the documents could bear upon the reliability of the plaintiff's evidence concerning the exposure event. The court held that the documents produced by the defendant may indeed throw light on the issues in the substantive proceedings, particularly in relation to the reliability of the plaintiff's evidence. Thus, the subpoena was not to be set aside.

Furthermore, the court addressed the issue of costs, finding that the dispute could have been avoided if a plain English explanation had been provided when a plain English question was asked. The court ordered that each party bear their own costs for the Notice of Motion.

The court dismissed the plaintiff's application to set aside the subpoena and ordered each party to pay their own costs. This decision highlights the importance of clear communication and the necessity for parties to provide straightforward explanations when required.

Orders

Orders of the court

(1) Dismiss the Notice of Motion filed by the plaintiff on 29 October 2024.

(2) Order each party to pay his or its own costs of the Notice of Motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Smith v CSR Limited & Ors [2024] NSWDDT 14
Hearing dates:	19 November 2024
Date of orders:	21 November 2024
Decision date:	21 November 2024
Before:	Russell SC DCJ
Decision:	(1) Dismiss the Notice of Motion filed by the plaintiff on 29 October 2024. (2) Order each party to pay his or its own costs of the Notice of Motion.
Catchwords:	DUST DISEASES – subpoena – application to set aside – legitimate forensic purpose – documents produced may throw light on the issues in the substantive proceedings – defendants are entitled to put plaintiff to proof – documents could bear upon reliability of plaintiff’s evidence concerning exposure event COSTS – parties to pay their own costs – dispute could have been avoided if a plain English explanation was given when a plain English question was asked
Cases Cited:	Ahmed v Ahmed [2013] NSWSC 1814 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 SingTel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Category:	Procedural rulings
Parties:	Peter Ronald Smith (Plaintiff) CSR Limited (First Defendant) Midalco Pty Limited (Second Defendant) Shire of Ashburton (Fourth Defendant)
Representation:	Counsel: S Tzouganatos (Plaintiff) D Miller (solicitor) (First and Second Defendants) D Andersen (solicitor) (Fourth Defendant) Solicitors: Segelov Taylor Lawyers (Plaintiff) Colin Biggers & Paisley (First and Second Defendants) HWL Ebsworth Lawyers (Fourth Defendant)
File Number(s):	DDT 2024/236979
Publication restriction:	Nil